IN THE COURT OF APPEALS OF IOWA
No. 18-1758
Filed April 1, 2020
STATE OF IOWA,
Plaintiff-Appellee,
vs.
KURTIS MICHAEL GREEN,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Boone County, Stephen A. Owen,
District Associate Judge.
Kurtis Green appeals his conviction of domestic abuse assault by
strangulation causing bodily injury and a part of the sentence imposed.
CONVICTION AFFIRMED; SENTENCE VACATED IN PART AND REMANDED.
Martha J. Lucey, State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney
General, and Kristy Brandt, Student Legal Intern, for appellee.
Heard by Tabor, P.J., and Mullins and Schumacher, JJ.
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MULLINS, Judge.
Kurtis Green appeals his conviction of domestic abuse assault by
strangulation causing bodily injury and part of the sentence imposed. He argues
his counsel rendered ineffective assistance in failing to adequately challenge the
sufficiency of the evidence to support his conviction. He also argues his counsel
was ineffective in failing to object to certain evidence as in violation of his right to
confrontation.1 Finally, he argues the court erred in ordering him to pay court costs
as restitution.
I. Background Facts and Proceedings
Upon the evidence presented at trial, a rational jury could make the
following factual findings. Shortly before 8:00 a.m. on January 16, 2018,
Commander Charles Pepples and Officer Cory Rose of the Boone Police
Department were dispatched to an apartment complex upon a report from a
neighbor “that there was arguing, fighting, yelling and screaming” coming from
Green’s apartment, where he resided with his girlfriend, A.R. Pepples and Rose
reported to the subject apartment; A.R. answered the door crying, upset, and
distraught.2 A.R. immediately reported that he, referring to Green, “took off.” She
then reported Green had “pulled [her] hair out” and “beat the shit out of” her. A.R.
1 As to the ineffective-assistance claims, Green also requests we exercise plain-
error review. Our supreme court has consistently declined to adopt the plain-error
doctrine. See, e.g., State v. Martin, 877 N.W.2d 859, 866 (Iowa 2016); State v.
Rutledge, 600 N.W.2d 324, 325 (Iowa 1999); State v. McCright, 569 N.W.2d 605,
607 (Iowa 1997). The supreme court transferred this case to us knowing full well
“[w]e are not at liberty to overrule controlling supreme court precedent.” State v.
Beck, 854 N.W.2d 56, 64 (Iowa Ct. App. 2014). We decline the request.
2 The officers’ exchange with A.R. was recorded by their body cameras. Some of
the footage was admitted as evidence at trial and played for the jury.
3
additionally reported Green had burnt her with a cigarette the prior evening. She
finally reported Green “choked her out bad” and restricted her airway and breathing
then “conked” her on the head. Pepples testified he observed redness around
A.R.’s neck, on her right shoulder, and on her leg. Rose testified he observed
redness on A.R.’s cheek, left arm, and chest, as well as a scratch on her leg. Rose
took photographs of A.R.’s left upper arm, her left wrist, her left leg, and the right
side of her face all of which depicted redness or scratches.
The officers ultimately located Green in another residence at the apartment
complex. Green reported he left the apartment because A.R. was intoxicated and
belligerent3 but nothing had happened and he did not know why A.R. had injuries.
After Green was advised he was under arrest, he reported A.R. had assaulted him.
He testified at trial that he woke up on the morning in question at 7:00 a.m. or 7:30
a.m. to a hostile and drunk A.R. According to Green, A.R. then threw a cell phone
and “a glass of water or something at” him. The two then argued, and Green
advised he was leaving. He explained A.R.’s scratches were from a cat in the
residence and the redness on A.R.’s person resulted from the apartment having
no heat.
Green was charged by trial information with domestic abuse assault by
strangulation causing bodily injury. The matter proceeded to a jury trial. Following
the State’s case-in-chief, Green moved for judgment of acquittal. The motion was
denied, as was the renewal of the generic motion following presentation of the
evidence for the defense. The jury found Green guilty as charged. The matter
3 Both Pepples and Rose testified they did not observe any signs of A.R. being
impaired.
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proceeded to sentencing. In its ensuing sentencing order, the court found Green
to be indigent and unable to pay court-appointed attorney fees. However, the court
stated “he does have some work history and the court costs are minimal . . . and
not beyond his ability to pay in a reasonable period of time under the
circumstances.” The court ordered the payment due immediately and delinquent
if not paid in thirty days. As noted, Green appeals.
II. Analysis
A. Sufficiency of the Evidence
Green first challenges the sufficiency of the evidence supporting his
conviction. He agrees his counsel’s generic motions for judgment of acquittal were
insufficient to preserve error on his challenge. See, e.g., State v. Schories, 827
N.W.2d 659, 664 (Iowa 2013); State v. Crone, 545 N.W.2d 267, 270 (Iowa 1996).
He thus argues his counsel rendered ineffective assistance in failing to adequately
challenge the sufficiency of the evidence.4 See State v. Fountain, 786 N.W.2d
260, 263 (Iowa 2010) (“Ineffective-assistance-of-counsel claims are an exception
to the traditional error-preservation rules.”).
To succeed on his ineffective-assistance-of-counsel claim, Green must
establish “(1) that counsel failed to perform an essential duty and (2) that prejudice
resulted.” State v. Kuhse, 937 N.W.2d 622, 628 (Iowa 2020); accord Strickland v.
Washington, 466 U.S. 668, 687 (1984). We “may consider either the prejudice
prong or breach of duty first, and failure to find either one will preclude relief.” State
4 A recent change in law prevents us from considering ineffective-assistance
claims on direct appeal. See 2019 Iowa Acts ch. 140, § 31 (codified at Iowa Code
§ 814.7). But this change does not apply to this case. See State v. Macke, 933
N.W.2d 226, 228 (Iowa 2019).
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v. McNeal, 897 N.W.2d 697, 703 (Iowa 2017) (quoting State v. Lopez, 872 N.W.2d
159, 169 (Iowa 2015)). When a defendant challenges counsel’s effectiveness in
relation to failing to preserve error on a challenge to the sufficiency of the evidence
for want of an adequate motion for judgment of acquittal, the overarching question
is “whether such a motion would have been meritorious.” See State v. Lilly, 930
N.W.2d 293, 298 (Iowa 2019) (quoting State v. Henderson, 908 N.W.2d 868, 874–
75 (Iowa 2018)). “If the record does not reveal substantial evidence to support the
convictions, counsel was ineffective for failing to raise the issue. If, however, the
record contains sufficient evidence, counsel’s failure to raise the claim was not
prejudicial and the claimant’s ineffective-assistance-of-counsel claim fails.” State
v. Albright, 925 N.W.2d 144, 152 (Iowa 2019). We proceed to the merits.
Challenges to the sufficiency of the evidence are reviewed for corrections
of errors at law. Id. at 150. The court views “the evidence ‘in the light most
favorable to the State, including all reasonable inferences that may be fairly drawn
from the evidence.’” State v. Ortiz, 905 N.W.2d 174, 180 (Iowa 2017) (quoting
State v. Huser, 894 N.W.2d 472, 490 (Iowa 2017)). All evidence is considered, not
just that of an inculpatory nature. See Huser, 894 N.W.2d at 490. “[W]e will uphold
a verdict if substantial evidence supports it.” State v. Wickes, 910 N.W.2d 554,
563 (Iowa 2018) (quoting State v. Ramirez, 895 N.W.2d 884, 890 (Iowa 2017)).
“Evidence is substantial if, ‘when viewed in the light most favorable to the State, it
can convince a rational jury that the defendant is guilty beyond a reasonable
doubt.’” Id. (quoting Ramirez, 895 N.W.2d at 890). Evidence is not rendered
insubstantial merely because it might support a different conclusion; the only
question is whether the evidence supports the finding actually made. See Brokaw
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v. Winfield-Mt. Union Cmty. Sch. Dist., 788 N.W.2d 386, 393 (Iowa 2010). In
considering a sufficiency-of-the-evidence challenge, “[i]t is not the province of the
court . . . to resolve conflicts in the evidence, to pass upon the credibility of
witnesses, to determine the plausibility of explanations, or to weigh the evidence;
such matters are for the jury.” State v. Musser, 721 N.W.2d 758, 761 (Iowa 2006)
(quoting State v. Williams, 695 N.W.2d 23, 28 (Iowa 2005)).
The State bears the burden of proving every element of a charged offense.
State v. Armstrong, 787 N.W.2d 472, 475 (Iowa Ct. App. 2010). Green does not
challenge the jury instructions employed at trial for the charged crime. As such,
the instructions serve as the law of the case for purposes of reviewing the
sufficiency of the evidence. See State v. Banes, 910 N.W.2d 634, 639 (Iowa Ct.
App. 2018). As to the crime of domestic abuse assault by strangulation causing
bodily injury, the jury was instructed the State was required to prove, among other
elements, that Green’s act of strangling A.R. caused a bodily injury. See Iowa
Code § 708.2A(5) (2018). The jury instructions defined “bodily injury” as “physical
pain, illness, or any impairment of physical condition.” Accord State v. McKee, 312
N.W.2d 907, 913 (Iowa 1981) (adopting Model Penal Code definition of bodily
injury).
Green only argues the evidence was insufficient to show his act of impeding
the normal breathing of A.R. caused her a bodily injury. The evidence, when
viewed in the light most favorable to the State, reveals the following pertinent facts.
Green “choked [A.R.] out bad,” to the extent that her airway and breathing were
restricted. While photographic evidence was not taken of A.R.’s neck area and the
video evidence was inconclusive, specific testimony was had from Pepples that
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A.R. exhibited redness around her neck. While reddening of the skin does not
amount to a per se bodily injury, it can certainly serve as evidence of an impairment
of physical condition. State v. Gordon, 560 N.W.2d 4, 6 (Iowa 1997). Furthermore,
the jury could rationally infer that being strangled to the point of not being able to
breathe and to an extent causing redness of the skin around the neck would result
in physical pain, which is by itself sufficient to amount to a bodily injury. See
McKee, 312 N.W.2d at 913.
Viewing the evidence in the light most favorable to the State, as we must,
we conclude the jury could rationally conclude A.R. suffered a bodily injury and the
evidence was therefore sufficient to support the claimed evidentiary deficiency. As
such, we find counsel was not ineffective as alleged.
B. Confrontation
Because A.R. did not testify at trial, Green argues the presentation of her
statements as evidence at trial violated his constitutional right to confrontation.
Because his counsel did not object to the admission of the evidence on
confrontation grounds, this issue is likewise unpreserved. Thus, Green argues his
counsel was ineffective in failing to object.
The right to confrontation restricts the admission of “‘testimonial statements’
of the sort that ‘cause the declarant to be a “witness” within the meaning of the
Confrontation Clause.’” State v. Schaer, 757 N.W.2d 630, 635 (Iowa 2008)
(quoting Davis v. Washington, 547 U.S. 813, 822 (2006)). “If a hearsay statement
made by a declarant who does not appear at trial is testimonial, evidence of that
statement is not admissible under the Confrontation Clause unless the declarant
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is unavailable to testify at trial and the defendant had a prior opportunity for cross-
examination.” Id.
With the foregoing confrontation principles in mind, we turn to general
problems concerning review of ineffective-assistance claims on direct appeal. As
a result of record inadequacies, such claims are normally preserved for
postconviction-relief proceedings. State v. Brown, 930 N.W.2d 840, 844 (Iowa
2019). Doing so “allows the parties to develop an adequate record of the claims
and provides the attorney charged with ineffective assistance with the ‘opportunity
to respond to defendant’s claims.’” State v. Harrison, 914 N.W.2d 178, 206 (Iowa
2018) (quoting State v. Soboroff, 798 N.W.2d 1, 8 (Iowa 2011). When an issue is
not raised in the district court and a record developed thereon, it leaves appellate
courts with a skeletal record, upon which the parties’ arguments are often-times
largely speculative. That is exactly what we have here. Considering the claim
would require us to buy into Green’s speculation that A.R. was available to testify
and that Green did not have a prior opportunity for cross-examination. While
Green argues “[t]he record does not conclusively show that [A.R.] was unavailable
to testify” at trial, neither does it affirmatively show she was available. While the
prosecutor may have been misguided in his belief that he could not call A.R. as a
witness in fear of a Turecek violation5 and she was therefore unavailable to testify,
5 A.R. recanted her allegations against Green prior to trial. “The State is not
entitled . . . to place a witness on the stand who is expected to give unfavorable
testimony and then, in the guise of impeachment, offer evidence which is otherwise
inadmissible.” State v. Turecek, 456 N.W.2d 219, 225 (Iowa 1990); see also State
v. Veverka, 938 N.W.2d 197, 201 (Iowa 2020). However, Turecek does not apply
to a situation where, as here, the statements are admissible under the excited-
utterance exception to the hearsay rule. See State v. Tompkins, 859 N.W.2d 631,
639 (Iowa 2015).
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Green also appears to agree it was possible that A.R. was cross-examined at a
prior hearing concerning the canceling of a no-contact order. The record is
inadequate to determine whether she was or not. And, we agree with the State
that it would be unfair “to allow Green to pocket his objection until his direct appeal,
when the State no longer has the opportunity to remedy the deficiency by laying
additional foundation.” The State is also on point that:
Without a record on the broader circumstances surrounding the trial,
it is impossible to construct a counterfactual series of events that
would have followed a ruling in Green’s favor on this hypothetical
objection—which means that, as the record currently stands, Green
cannot carry his burden of establishing a reasonable probability of a
different result if this claim had been raised below.
We find the record inadequate to consider the claim of a confrontation violation on
direct appeal. Green may pursue the claim in a postconviction-relief proceeding,
if he so chooses.
C. Restitution
In its sentencing order, the court stated Green “does have some work
history and the court costs are minimal . . . and not beyond his ability to pay in a
reasonable period of time under the circumstances.” The court ordered the
payment due immediately and delinquent if not paid in thirty days. Green
challenges the sentencing provision finding he had the reasonable ability to pay
court costs as restitution absent “any information as to the amount of court costs.”
The State responds “the sentencing court must have known the amount of court
costs to characterize them as ‘minimal’” and there is no reason to believe the
amount was not “before the court.” We are not persuaded. “Under Albright,
imposition of the fees must await the filing of a final restitution plan and a
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determination of [Green’s] ability to pay.” State v. Smeltser, No. 18-0998, 2019
WL 2144683, at * 1 (Iowa Ct. App. May 15, 2019). That procedure was not
followed here, so we vacate the challenged sentencing provision and remand the
matter to the district court for completion of a restitution plan and a determination
of Green’s reasonable ability to pay.
III. Conclusion
We find Green’s conviction is supported by substantial evidence and
counsel was therefore not ineffective in failing to properly challenge the sufficiency
of the evidence. We preserve Green’s claim counsel was ineffective in failing to
object to certain evidence as in violation of his right to confrontation. We thus
affirm Green’s conviction. However, we find the district court did not follow the
proper procedures for the ordering of restitution. We therefore vacate the
challenged sentencing provision and remand the matter to the district court for
completion of a restitution plan and a determination of Green’s reasonable ability
to pay.
CONVICTION AFFIRMED; SENTENCE VACATED IN PART AND
REMANDED.